1. This judgment demonstrates how important it will be for the European Union to accede to the European Convention of Human Rights in order to make the control mechanism of the Convention complete, even if this judgment has left the so-called M. & Co. approach far behind (no. 13258/87, Commission decision of 9 February 1990, Decisions and Reports 64). It has accepted the Court's jurisdiction ratione loci, personae and materiae under Article 1 of the Convention, clearly departing from an approach which would declare the European Communities immune, even indirectly, from any supervision by this Court. On the examination of the merits of the complaint, the question is whether there exists a reasonable relationship of proportionality between the interference with the applicant company's property, on the one hand, and the general interest, on the other.
On the basis of its case-law, the Court developed, in particular in Waite and Kennedy v. Germany ([GC], no. 26083/94, ECHR 1999-I), a special ratio decidendi regarding the extent of its scrutiny in cases concerning international and supranational organisations. I can agree with the result in this case that there was no violation of Article 1 of Protocol No. 1 and that the interference with the use of the applicant company's property – in the general interest of safeguarding the sanctions regime of the United Nations and the European Community – did not go beyond the limits any trading company must be prepared to accept in the light of that general interest. One could argue that to come to this conclusion the whole concept of presumed Convention compliance by international organisations, and in particular by the European Community, was unnecessary and even dangerous for the future protection of human rights in the Contracting States when they transfer parts of their sovereign power to an international organisation.
2. The judgment should not be seen as a step towards the creation of a double standard. The concept of a presumption of Convention compliance should not be interpreted as excluding a case-by-case review by this Court of whether there really has been a breach of the Convention. I subscribe to the finding of the Court that there exists within the European Community an effective protection of fundamental rights and freedoms including those guaranteed by the Convention even if the access of individuals to the ECJ is rather limited, as the Court has recognised, if not criticised, in paragraph 162 of the judgment. The Court has not addressed the question of whether this limited access is really in accordance with Article 6 § 1 of the Convention and whether the provisions, in particular, of former Article 173 of the EC Treaty should not be interpreted more extensively in the light of Article 6 § 1 of the Convention, a point that was in issue before both the Court of First Instance and the ECJ in Jégo-Quéré & Cie S.A. v.
Commission of the European Communities (Case T-177/01 [2002]
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ECR I2365 (Court of First Instance) and Case C-263/02 P [2004] ECR I-3425 (ECJ)). See also the ECJ's judgment in Unión de Pequeños Agricultores v. Council of the European Union (Case C-50/00 P [2002]
ECR I-6677). One should not infer from paragraph 162 of the judgment in the present case that the Court accepts that Article 6 § 1 does not call for a more extensive interpretation. Since the guarantees of the Convention only establish obligations “of result”, without specifying the means to be used, it seems possible to conclude that the protection of fundamental rights, including those of the Convention, by Community law can be considered to have been “equivalent” (see paragraph 165 of the judgment), even if the protection of the Convention by the ECJ is not a direct one but rather an indirect one through different sources of law, namely the general principles of Community law. The criticism has sometimes been made that these general principles of Community law do not, as interpreted by the case-law of the ECJ, fulfil the required standard of protection, as they are limited by considerations of the general public interest of the European Community.
This reasoning makes it rather difficult for the ECJ to find violations of these general principles of Community law. The Court's analysis of the
“equivalence” of the protection is a rather formal one, and relates only to the procedures of protection and not to the jurisprudence of the ECJ in relation to the various substantive Convention guarantees: a major part of the jurisprudence of the ECJ on the level and intensity of the protection of property rights and the application of Article 1 of Protocol No. 1 is missing.
But it is to be expected in future cases that the presumption of Convention compliance should and will be enriched by considerations about the level and intensity of protection of a specific fundamental right guaranteed by the Convention. In my view, one cannot say once and for all that, in relation to all Convention rights, there is already such a presumption of Convention compliance because of the mere formal system of protection by the ECJ. It may be expected that the provisions of the Charter of Fundamental Rights of the European Union, if it comes into force, may enhance and clarify this level of control for the future.
3. The Court decided that the presumption can only be rebutted if, in the circumstances of a particular case, it is considered that the protection of the Convention rights was manifestly deficient. The protection was manifestly deficient when there has, in procedural terms, been no adequate review in the particular case such as: when the ECJ lacks competence (as in Segi and Gestoras Pro-Amnistía and Others v. Germany, Austria, Belgium, Denmark, Spain, Finland, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, the United Kingdom and Sweden (dec.), nos. 6422/02 and 9916/02, ECHR 2002-V); when the ECJ has been too restrictive in its interpretation of individual access to it; or indeed where there has been an obvious misinterpretation or misapplication by the ECJ of the guarantees of the Convention right. Even if the level of protection must
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only be “comparable” and not “identical”, the result of the protection of the Convention rights should be the same. It is undisputed that the level of control extends to both procedural and substantive violations of the Convention guarantees. Article 35 § 3 of the Convention refers to applications which are manifestly ill-founded and the new Article 28 § 1 (b) as inserted by Protocol No. 14 gives Committees the power to declare applications which are manifestly well-founded admissible and render at the same time a judgment on the merits, that is, in the wording of that new Article, if the underlying question in the case concerns an interpretation or application of the Convention (or its Protocols) which is already the subject of well-established case-law of the Court. One would conclude that the protection of the Convention right would be manifestly deficient if, in deciding the key question in a case, the ECJ were to depart from the interpretation or the application of the Convention or the Protocols that had already been the subject of well-established ECHR case-law. In all such cases, the protection would have to be considered to be manifestly deficient.
In other cases concerning new questions of interpretation or application of a Convention right, it may be that the ECJ would decide in a way the ECHR would not be prepared to follow in future cases, but in such cases it would be difficult to say that the deficiency was already manifest. But even that result should not be excluded ab initio. Accordingly, and relying on the wording of the Convention and its Protocols, I do not see the “manifestly deficient” level to be a major step in the establishment of a double standard.
Since the ECJ would, in a future case, be under an obligation to consider whether there was already an interpretation or an application of the Convention which was the subject of well-established ECHR case-law, I am convinced that it is only in exceptional cases that the protection will be found to have been manifestly deficient. In the light of this interpretation of the judgment which confirms the ECJ's obligation to follow the “well-established case-law of the ECHR” I have agreed to the maxim in paragraph 156.
4. It would probably have been possible to elaborate on the various points made in paragraph 166 of the judgment. The very brief reference to the nature of the interference, to the general interest pursued by the impoundment and by the sanctions regime, and to the ECJ's ruling (in the light of the opinion of the Advocate General) should not be seen as an open door through which any future cases where State authorities apply Community law can pass without any further scrutiny. The Court has referred to the fact that there was no dysfunction of the mechanism of control and of the observance of Convention rights. A dysfunction of the observance of Convention rights would arise precisely in those cases where the protection was manifestly deficient in the sense I have tried to explain. It would probably have been useful to explain this in more detail to avoid the impression that member States of the European Community live under a
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different and more lenient system as regards the protection of human rights and fundamental freedoms of the Convention. In fact, the intensity of control and supervision by the ECHR will not be too different between these States and others (such as Russia or Ukraine) which are not members of the European Community.
5. A general remark is necessary on paragraph 150 of the judgment as regards the interpretation of the Convention “in the light of any relevant rules and principles of international law”, which principles include that of pacta sunt servanda. This cannot be interpreted as giving treaties concluded between the Contracting Parties precedence over the Convention. On the contrary, as the Court recognised in Matthews v. the United Kingdom ([GC], no. 24833/94, ECHR 1999-I), international treaties between the Contracting Parties have to be consistent with the provisions of the Convention. The same is true of treaties establishing international organisations. The importance of international cooperation and the need to secure the proper functioning of international organisations cannot justify Contracting Parties creating and entering into international organisations which are not in conformity with the Convention. Furthermore, international treaties like the Convention may depart from rules and principles of international law normally applicable to relations between the Contracting Parties. Therefore, in Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001-XI, which the Court cited in this connection in its judgment in the present case), the Court's approach to the relationship between different sources of public international law was not the right one. The correct question should have been whether, and to what extent, the Convention guarantees individual access to tribunals in the sense of Article 6 § 1 and whether the Parties could and should have been seen as nevertheless reserving the rule on State immunity. Since the Contracting Parties could have waived their right to rely on State immunity by agreeing to Article 6 § 1 of the Convention, the starting-point should have been the interpretation of Article 6 § 1 alone.
Unfortunately this question was never raised. In the present case, the correct approach should have been to examine whether, and to what extent, the Contracting Parties could and should be presumed to have reserved a special position in relation to the Convention for international treaties establishing an international organisation. The Court seems to proceed on the assumption that the Contracting States agreed inherently that the value of international cooperation through international organisations is such that it may prevail to a certain extent over the Convention. I could agree to this conclusion, in principle, if all Contracting Parties to the Convention were also parties to the international organisation in question. However, as Switzerland and Norway show, even from the very beginning of European integration, this has never been the case.